Opinion
01 Civ. 2177 (SHS) (DF)
February 26, 2002
Mr. Ramon Gonzalez, Pro Se, Sing Sing Correctional Facility, Ossining, NY, For Petitioner.
Brian M. Stettin, Esq., Assistant Attorney General, New York, NY, For Respondent.
REPORT AND RECOMMENDATION TO THE HONORABLE SIDNEY H. STEIN, U.S.D.J.
INTRODUCTION
Pro se petitioner Ramon Gonzalez ("Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County. Upon a jury verdict, Petitioner was convicted of one count of criminal possession of a controlled substance in the third degree. Petitioner was sentenced to an indeterminate term of eight to 16 years imprisonment. He is currently incarcerated at Sing Sing Correctional Facility.
Petitioner challenges his conviction on the ground that he was denied due process when the trial court refused to sanction the prosecution for the destruction of evidence. (See Pet. at 5.) In addition, Petitioner challenges his sentence as excessive. (See id.) Respondent argues that the petition should be dismissed, because Petitioner's first claim is without merit and the second claim is not cognizable on habeas review. (See Resp. Mem. at 8-11.) For the reasons set forth below, I recommend that the petition be dismissed.
"Pet." refers to Petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254, received by this Court's Pro Se Office on January 11, 2001. "Pet. Mem" refers to Petitioner's memorandum of law submitted in support of his application for a writ of habeas corpus, received by this Court's Pro Se Office on January 11, 2001.
"Resp. Mem." refers to Respondent's Memorandum of Law in Opposition To Petitioner's Application for a Writ of Habeas Corpus, filed August 1, 2001. "Stettin Decl." refers to Brian M. Stettin's Declaration in Opposition to the petition, executed on July 31, 2001.
FACTUAL BACKGROUND
On the afternoon of July 3, 1993, Police Officers Robert Graves ("Graves") and Michael Hevaghan ("Hevaghan") were on anti-crime patrol in a yellow taxicab, disguised as a taxi driver and passenger, when they saw Petitioner walking south on Amsterdam Avenue near the corner of 86th Street. (See Tr. at 248-50, 354-57.) As the officers watched, they saw an African-American man approach Petitioner and give Petitioner money. (See id. at 250-51, 357-58.) The officers testified that Petitioner pulled something from the waistband of his pants and handed it to the man. (See id. at 251-52, 359-60.) Petitioner then walked away. (See id. at 255, 359.) According to the officers, a few minutes later Petitioner engaged in a similar exchange with a Hispanic woman. (See id. at 256-57, 361.) The woman handed Petitioner money and he pulled a plastic bag from the waistband of his pants, retrieved a smaller item from that bag, and handed it to the woman. (See id. at 257, 361.) At that point, Hevaghan exited the taxicab and began following Petitioner on foot. (See id. at 257-58, 361.) Petitioner went into a shoe store and emerged carrying a plastic bag containing a pair of sneakers. (See id. at 258-59, 269.) Hevaghan, together with Graves, who, by that point, had also exited the taxicab, followed Petitioner a short distance and then arrested him. (See id. at 259, 364-65.)
The transcript of Petitioner's trial is comprised on three parts. The first part (referred to herein as "Pre-Trial Tr.") includes Petitioner's pre-trial Mapp hearing, which was conducted on July 31, 1996. The second part (referred to herein as "Tr.") includes Petitioner's pre-trial Sandoval/Molineaux hearing, jury selection, and the testimony presented at trial, which was conducted on August 1-2, and 5, 1996. The third part (referred to herein as "Sentencing Tr.") includes the transcript of Petitioner's sentencing hearing, held on September 16, 1996.
According to Hevaghan and Graves, when they searched Petitioner's person at the scene, they recovered a plastic bag containing 19 smaller bags of what appeared to be crack cocaine. (See id. at 259, 267, 322, 365-66.) Two police chemists testified that the substance in the 19 bags tested positive for cocaine. (See id. at 338-44, 381-87.)
Back at the precinct, a more thorough search of Petitioner revealed $118.25 on Petitioner's person. (See id. at 260-62.) Hevaghan testified that he prepared a "property voucher" and noted that the money retrieved was in the following denominations: one 20-dollar bill, five 10-dollar bills, three five-dollar bills, 27 one-dollar bills, 23 quarters, four dimes and two nickels. (See id. at 260-62, 323.)
At trial, Petitioner denied carrying any drugs or engaging in any conversation or transactions with either an African-American man or a Hispanic woman. (See id. at 423-24, 428-29, 430-31, 438-39.) Rather, Petitioner testified that he went out to buy a pair of sneakers and stopped to buy an iced tea and to speak with a group of acquaintances on the way. (See id. at 423-24, 430-31.) Petitioner testified that, after spending $52 on the sneakers, he left the store and was accosted by two police officers who pushed him against a wall and frisked him. (See id. at 424-26, 433-34.) According to Petitioner, the officers asked who sold drugs in the area and insisted that Petitioner knew the answer to the question. (See id. at 427, 434-35.) After conferencing for a few minutes, the officers kicked Petitioner's feet apart, opened his pants, and showed Petitioner a bag of drugs the officers claimed belonged to Petitioner. (See id.)
PROCEDURAL BACKGROUND A. Arraignment
On July 30, 1993, Petitioner was arraigned on an indictment charging him with criminal possession of a controlled substance in the third and fifth degrees. At his arraignment, the prosecution presented Petitioner with a Voluntary Disclosure Form, providing him with certain information pertaining to the case. (See Stettin Decl. Ex. B.) In the form, the prosecution informed Petitioner that, among the property recovered from Petitioner upon his arrest was $118 in cash, and invited Petitioner to examine that property at a mutually convenient time. (See id. at 3.) On August 12, 1993, Petitioner filed an omnibus motion requesting, among other things, discovery under New York Criminal Procedure Law § 240.20 of any property obtained from appellant. (See id. Ex. E [Petitioner's brief on direct appeal] at 3.) Apparently, no written decision on Petitioner's motion was issued. (See id.)
On October 21, 1993, Petitioner did not appear at a scheduled court appearance, and a bench warrant was issued. (See id.) Petitioner was involuntarily returned, pursuant to the warrant, more than two years later, on January 23, 1996. (See id.)
B. Pre-Trial Hearings
On July 31, 1996, a pre-trial Mapp hearing was held before the trial court judge, the Honorable Ronald A. Zweibel. At that hearing, Petitioner's counsel sought to suppress the drugs recovered from Petitioner on the ground that there was no probable cause for his arrest. (See Pre-Trial Tr. at 45.) The court denied Petitioner's motion to suppress in all respects. (See id. at 50-55.) That ruling is not at issue.
This hearing was held pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), to determine whether evidence was obtained in violation of Petitioner's Fourth Amendment right to be free from unreasonable search and seizure.
On August 1, 1996, the court held a Sandoval/Molineux hearing, at which the prosecution sought the court's permission to cross-examine Petitioner, if he chose to testify, regarding his prior convictions and other bad acts. (See Tr. at 3-6.) The trial court ruled that the prosecution could elicit from Petitioner that he had been convicted of a felony in 1991 and another crime in 1990, but refused to allow the prosecution to question Petitioner regarding the underlying facts or circumstances of those convictions. (See id. at 10.) In addition, the court ruled that the prosecution could question Petitioner regarding uncharged crimes that led to his arrest — specifically, that he was observed giving unknown objects to the two individuals in exchange for money. (See id. at 10-11.) These rulings are also not at issue.
That hearing was held pursuant to: (1) People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849 (1974), to determine whether the prosecution could use Petitioner's prior criminal acts for impeachment purposes; and (2) People v. Molineux, 168 N.Y. 264, 293 (1901), to determine whether the prosecution could use uncharged crimes or other bad acts to establish Petitioner's motive, intent, absence of mistake or accident, a "common scheme or plan," or identity.
C. Jury Selection
On August 1, 1996, during jury selection, the prosecutor advised the court that it had just learned that, on February 16, 1996, the New York City Police Department destroyed the $118 recovered from Petitioner, on the mistaken belief that the case had been resolved. (See Tr. at 18, 194-99.) The following day, Petitioner moved for a mistrial or to suppress any mention at trial of recovery of the money. (See id. at 211-12, 217-18.) In the alternative, Petitioner requested an instruction to the jury that they could draw an inference from the destruction of the evidence that such evidence would not have supported the prosecution's case. (See id. at 217-18, 223-25.) The trial court denied the motions for a mistrial and to suppress, but reserved decision, until after presentation of the evidence, on whether to grant Petitioner's alternative motion for an adverse inference instruction. (See id. at 223-25.)
D. Trial
Petitioner was tried by a jury from August 2, 1996, through August 5, 1996. At trial, the prosecution's witnesses were Police Officer Michael Hevaghan, Sergeant Angelo Lugo ("Lugo") of the New York Police Department Property Clerk's Office, and police chemists Gajendra P. Joshi and Shaker Elsherbini. Petitioner testified on his own behalf.
At trial, Lugo testified that the $118 retrieved from Petitioner's person at the police station was destroyed as a result of inaccurate information that Petitioner's case was closed.. (See Tr. at 407-08, 414-16.) Petitioner testified that he had, in fact, had $118 in cash on his person at the time of his arrest. (See id. at 423-25, 428, 436.) Petitioner claimed, however, that the denomination of bills was different than what was recorded on the Property Clerk's Invoice. (See id. at 428, 436-38.)
Lugo explained that, periodically, the Property Clerk's Office would review its files to determine whether to liquidate particular sums of money seized in criminal investigations. (See Tr. at 405-06.) In such circumstances, the money would be sent to the federal government, where the currency would be destroyed, and the federal government would credit the city's account. (See id. at 412, 415.)
Although the transcript is not entirely clear, it appears that Petitioner claimed that he was carrying four 20-dollar bills, one 10-dollar bill, five five-dollar bills, three one-dollar bills and some change. (See Tr. at 428, 436-38.)
After presentation of the evidence, Petitioner again moved for a mistrial and also moved for an outright dismissal on the basis of the destroyed evidence. (See id. at 441-42.) The court denied Petitioner's motion. (See id. at 442.) Petitioner then asked the court for an adverse inference charge. (See id. at 455-56.) The court declined to give an adverse inference instruction. (See id. at 458.)
On August 5, 1996, the jury found Petitioner guilty on one count of criminal sale of a controlled substance in the third degree. (See Tr. at 564-65.) The jury acquitted Petitioner of one count of criminal possession of a controlled substance in the fifth degree. (See id. at 565.) On September 16, 1996, at his sentencing hearing, the court determined that Petitioner was a predicate felony offender (see Sentencing Tr. at 3), and sentenced him to an indeterminate term of eight to 16 years imprisonment (see id. at 7).
Petitioner had two prior felony convictions: one in 1990 for attempted criminal sale of a controlled substance in the third degree, and one in 1991 for criminal sale of a controlled substance in the fifth degree. (See Stettin Decl. Ex. E at 16-17; see also Sentencing Tr. at 3-4.)
E. Direct Appeal
Petitioner filed a notice of appeal with the Appellate Division, First Department, on September 17, 1996. (See Stettin Decl. Ex. C.) In a brief dated February 1999, Petitioner asserted the same two claims that he now raises in his habeas petition. (See id. Ex. E [Petitioner's brief on direct appeal] at 2, 18-28.) The State opposed each of those claims. (See id. Ex. E [State's brief on direct appeal] at 9-21.)
On November 9, 1999, the Appellate Division affirmed Petitioner's conviction. See People v. Gonzalez, 266 A.D.2d 30, 699 N.Y.S.2d 7 (1st Dep't 1999). In its opinion, the Appellate Division concluded that the trial court had "appropriately exercised its discretion in denying [Petitioner's request for] an adverse inference charge or other sanction for the Police Department's destruction of the money recovered from defendant after his arrest." Id., 266 A.D.2d at 30, 699 N.Y.S.2d at 7. The court concluded that Petitioner had "forfeited any right to demand production of the evidence" when he "absconded and remained at large for over two years" and when he "never availed himself" of the opportunity to inspect the evidence, "but raised the issue for the first time after the destruction of the evidence was revealed." Id. In addition, the court "perceive[d] no abuse of sentencing discretion." Id.
In two separate letters, Petitioner sought leave to appeal the affirmance of his conviction to the New York Court of Appeals. In the first letter, dated December 2, 1999, Petitioner, through counsel, requested permission to appeal both of the issues presented to the Appellate Division. (See Stettin Decl. Ex. G.) In the second letter, dated December 17, 1999, Petitioner, again through counsel, argued that leave to appeal should be granted to "correct the Appellate Division's erroneous application of the rules regarding the destruction of material evidence." (Id.) On March 8, 2000, leave to appeal to the Court of Appeals was denied. See People v. Gonzalez, 94 N.Y.2d 920, 708 N.Y.S.2d 359 (2000). The instant petition followed.
DISCUSSION I. PETITIONER'S CLAIM THAT HE WAS DENIED DUE PROCESS BECAUSE THE TRIAL COURT FAILED TO PROVIDE A REMEDY AFTER EVIDENCE WAS DESTROYED SHOULD BE DISMISSED.Petitioner claims that he was denied due process when the trial court denied his motions for a mistrial, to dismiss the case, and/or to provide an adverse inference charge as a result of the prosecution's failure to preserve evidence that was material to the case against Petitioner. (See Pet. at 5; see also Pet. Mem. at 17-23.) Respondent argues that the state court's denial of Petitioner's so-called "destruction-of-evidence claim" was consistent with Supreme Court precedent, and, therefore, not contrary to or an unreasonable application of federal law. (See Resp. Mem. at 8-10.)
A. The Claim Is Exhausted.
A federal court may not consider a petition for a writ of habeas corpus unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state courts, thereby affording those courts the "'opportunity to pass upon and correct' alleged violations of . . . prisoners' federal rights." Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). Once the state courts are apprised of the constitutional nature of a petitioner's claims, the exhaustion requirement is fulfilled when those claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (citation omitted).
In this case, Petitioner presented the destruction-of-evidence claim on direct appeal and in his letters seeking leave to appeal the affirmance of his conviction. (See Stettin Decl. Ex. E at 18-28; Stettin Decl. Ex. G.) Thus, the claim is exhausted and ripe for review by this Court.
B. The Claim Should Be Reviewed Under AEDPA.
The standard of review governing this matter is set out in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The relevant portion of AEDPA, codified at 28 U.S.C. § 2254(d), provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court clarified the meaning of the "contrary to" and "unreasonable application" clauses of AEDPA Section 2254(d)(1). A state court decision is "contrary to" clearly established federal law where the state court either applies a rule that "contradicts the governing law" set forth in Supreme Court precedent, id. at 405, or "confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision" and arrives at a different result, id. at 406. An "unreasonable application" of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to the particular facts before it. Id. at 413. The Supreme Court has explained that "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. Thus, the writ may not issue simply because the state court decision is erroneous or incorrect; rather, the application must also be unreasonable. Id. at 411.
AEDPA Section 2254(d) indicates that it only applies to claims that have been "adjudicated on the merits" by the state court. The Second Circuit has held that the phrase "adjudicated on the merits" means "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Applying Sellan here, Petitioner's "destruction of evidence" claim was "adjudicated on the merits" in state court. The Appellate Division rejected that claim on the ground that Petitioner had "forfeited any right to demand production of the evidence" when he "absconded and remained at large for over two years" and failed to take advantage of the prosecution's invitation to inspect the evidence. Gonzalez, 266 A.D.2d at 30, 699 N.Y.S.2d at 7. Accordingly, AEDPA's deferential standard of review applies to this claim.
C. The Claim Is Without Merit.
The prosecution has a duty to disclose exculpatory evidence to a criminal defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963); see also United States v. Agurs, 427 U.S. 97, 111 (1976). Failure to disclose such evidence when that evidence is in the possession of the prosecution, "irrespective of the good faith or bad faith of the prosecution," is a violation of due process. Brady, 373 U.S. at 87 (1963). The prosecution's duty of disclosure is limited to evidence that is "material." United States v. Avellino, 136 F.3d 249, 256 (2d Cir. 1998) (citing United States v. Bagley, 473 U.S. 667, 678 (1985)). "[F]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a 'reasonable probability' that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). "In other words, evidence is material if it 'could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" United States v. Orena, 145 F.3d 551, 557 (2d Cir. 1998) (citing Kyles, 514 U.S. at 435).The Supreme Court has, however, differentiated instances in which the prosecution fails to disclose evidence in its possession from those in which the prosecution fails to preserve evidence. See Arizona v. Youngblood, 488 U.S. 51, 57 (1988); California v. Trombetta, 467 U.S. 479 (1984). Where evidence has been lost or destroyed, a defendant must show "bad faith" on the part of the police or prosecution in failing to preserve the evidence in order to establish a due process violation. Youngblood, 488 U.S. at 57-58 ("unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process"); accord Colon v. Kuhlmann, 865 F.2d 29, 30 (2d Cir. 1988); Brock v. Artuz, No. 99 Civ. 1903 (AJP), 2000 WL 1611010, at *8 (S.D.N.Y. Oct. 27, 2000). Thus, even assuming arguendo that lost or destroyed evidence is material, a petitioner cannot establish a constitutional violation unless he or she can show bad faith on the part of the prosecution. See United States v. Rastelli, 870 F.2d 822, 833 (2d Cir. 1989) ("missing evidence claim must fail" where the record was "barren of proof that the government lost the evidence in bad faith"); Brock, 2000 WL 1611010, at *8 (destruction of evidence claim dismissed where petitioner failed to establish both that missing evidence was "exculpatory" and that there was any "bad faith on the part of the police or prosecution" in the destruction).
In this case, Petitioner has not argued that the evidence was destroyed in bad faith. Indeed, Petitioner asserts that Youngblood and Trombetta "are not controlling on the destruction — of-evidence issue." (Pet. Mem. at 22.) Instead, Petitioner focuses on New York law, arguing that it requires the prosecution to disclose property obtained from the defendant. (See Pet. Mem. at 22 (citing N.Y. Crim. Proc. § 240.20(1)(f); People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 836 (1984).) Petitioner is correct that, under New York law, "where discoverable evidence gathered by the prosecution or its agent is lost, the People have a heavy burden of establishing that diligent, good-faith efforts were made to prevent the loss" or "sanctions will be imposed." Kelly, 62 N.Y.2d at 520, 478 N.Y.S.2d at 836 (citation omitted). The issue before this Court, however, is not whether the state court violated state law. Rather, the issue is whether the state court violated federal law. See 28 U.S.C. § 2254(a) (habeas relief is available "only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States"); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). In the absence of any showing that the prosecution or its agents acted in bad faith in the destruction of the evidence, Petitioner cannot establish a constitutional due process violation. Therefore, it cannot be said that the Appellate Division's rejection of Petitioner's claim was contrary to or an unreasonable application of federal law. Accordingly, I recommend that Petitioner's first claim be dismissed.
II. PETITIONER'S CHALLENGE TO THE LENGTH OF HIS SENTENCE IS NOT COGNIZABLE ON HABEAS REVIEW.
Petitioner's second claim is that his sentence of an indeterminate term of eight to 16 years imprisonment was excessive. (See Pet. at 5.) This claim is not cognizable on habeas review.
To the extent Petitioner is claiming that the trial court abused its discretion in sentencing him to a particular prison term, such a claim is not reviewable. See Fielding v. LeFevre, 548 F.2d 1102, 1108 n. 12 (2d Cir. 1977) ("The Eighth Amendment is not a general grant to the federal courts of power to review sentences. Rather, it allows the review of the punishment specified by statute. . . . [Federal courts] are to review legislative choices, not abuses of judicial discretion.") (citation omitted); accord Alvarez v. Scully, No. 91 Civ. 6651 (PKL), 1993 WL 15455, at *11 (S.D.N.Y. Jan. 11, 1993), aff'd, 23 F.3d 397 (2d Cir. 1994).
Moreover, even if Petitioner's claim were liberally construed to allege cruel and unusual punishment in violation of the Eighth Amendment, the claim fails. This is because an excessive sentence claim under the Eighth Amendment is not cognizable on habeas review where the sentence imposed complies with state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law") (citation omitted); accord Ross v. Gavin, 101 F.3d 687 (Table), No. 95-2448, 1996 WL 346669, at **1 (2d Cir. June 25, 1996) (citation omitted); McCalvin v. Senkowski, 160 F. Supp.2d 586, at 588-89 (S.D.N.Y. 2001) (citation omitted).
See Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) ("[t]he complaint of a pro se litigant is to be liberally construed in his favor") (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)); Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (where a petitioner is proceeding pro se and "lack[s] expertise," the Court "should review [his] habeas petition with a lenient eye").
In this case, Petitioner was convicted of a class B felony (see Tr. at 564-65), and sentenced as a second felony offender (see Sentencing Tr. at 3). The statutorily authorized sentence for a second felony-offender convicted of a class B felony is an indeterminate term of imprisonment, the maximum term of which is no less than nine years and no more than 25 years and the minimum term of which is one-half of the maximum term imposed. See N.Y. Penal § 70.06(3)(b) and (4)(b). Here, Petitioner received an indeterminate sentence of eight to 16 years imprisonment. (See Sentencing Tr. at 7.) That sentence is well within the range set by law.
Criminal possession of a controlled substance in the third degree is defined as a class B felony. See New York Penal Law § 220.16.
A second felony offender is defined as a person "who stands convicted of a felony defined in this chapter, other than a class A-I felony, after having previously been subjected to one or more predicate felony convictions." N.Y. Penal § 70.06(1)(a). Petitioner's prior convictions for attempted criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in the fifth degree qualify as two predicate felony convictions. See N.Y. Penal § 70.06(1)(b)(i); see also N.Y. Penal §§ 70.00, 110.05(4), 220.31, 220.39.
In order to state a claim under the Eighth Amendment that is cognizable on habeas review, a petitioner must allege that the statute under which he was sentenced is itself unconstitutional. See United States v. Dawson, 400 F.2d 194, 200 (2d Cir. 1968) ("when a statute provides for punishment thought to be violative of the [Eighth] amendment the constitutionality of the statute itself must be attacked"). In this case, Petitioner has made no such attack on the validity of the relevant statutes. Even if he had, however, such a claim would be without merit.
Courts must give deference to the length of sentence deemed appropriate by the state legislature. See Solem v. Helm, 463 U.S. 277, 290 (1983) ("[r]eviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes"); Bellavia v. Fogg, 613 F.2d 369, 373 (2d Cir. 1979) (the Court will not substitute its judgment for that of a legislature in addressing an Eighth Amendment claim). "It is well-settled that finding a sentence as violative of the Eighth Amendment is strictly limited to only the most extenuating of circumstances." Alvarez, 1993 WL 15455, at *12 (citing Solem, 463 U.S. at 290). As the Supreme Court has explained, "a punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." Coker v. Georgia, 433 U.S. 584, 592 (1977). "The Eighth Amendment condemns only punishment that shocks the collective conscience of society." United States v. Gonzalez, 922 F.2d 1044, 1053 (2d Cir. 1991). Here, the New York statutes that permitted Petitioner to be sentenced to an indeterminate term of eight to16 years imprisonment do not shock the conscience or impose punishment that is grossly out of proportion to the severity of the crime.
Because the sentence imposed was clearly within the range prescribed by New York law, Petitioner's claim is not cognizable in a federal habeas proceeding. Furthermore, Petitioner has not argued and, in any event, cannot establish that the statute under which he was sentenced is unconstitutional. Accordingly, I recommend that Petitioner's claim that his sentence was excessive be dismissed.
CONCLUSION
For all of the foregoing reasons, I recommend that Petitioner's petition for a writ of habeas corpus be dismissed in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, United States Courthouse, 500 Pearl Street, Room 1010, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).